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Legal Studies & History 510: LEGAL PLURALISM Prof. Mitra Sharafi Spring 2013 Class Time: TTh 9.30-10.45am Class Location: Sewell Social Sciences 6102 E-mail: sharafi@wisc.edu Phone: (608) 265-8428 Office: Law 6112 (Directions: the Law Building is halfway up Bascom

Mall on the left. When you enter from Bascom Mall, turn right and take the elevators or stairs to the sixth floor. Other routes will not necessarily lead to 6112.)

Office Hours: Th 1.30-3.30pm or by appointment Course Page: Moodle course page accessible via UW Law School Moodle

webpage: http://moodle.law.wisc.edu/ or via Learn@UW link on right side of UW-Madison website (under “My UW-Madison”)

Course description: This course explores the vibrancy and diversity of rule-based systems that may be called law. The common law—the dominant type of state legal system in Anglophone jurisdictions—is only one flavor of law. Non-state normative orders also exist. Like the law of the state, these other orders have rules, ways of enforcing these rules, and adjudicatory bodies that resolve disputes among their members. These systems appear in the clan, tribe, club, school, ethnic group, religious community, profession and corporation. The course covers a wide array of non-state actors and orders, drawing upon legal history and legal anthropology. We will examine everything from medieval English “forest law” to mafia law, the Tokyo tuna court to dispute resolution among orthodox Jewish diamond traders, and Australian aboriginal customary law to immigrant norms in Euro-American contexts. The course compares adversarial and conciliatory models of dispute resolution, along with fault- and no-fault-based systems. We will also explore institutional and justice-based arguments for and against the recognition of non-state law by the state, and strategies to move between legal orders through forum shopping. Interlegality, or relations between coexisting legal orders, is another key theme of the course. We will grapple with relationships of conflict and competition between legal systems, and with the possibility of other relations, including symbiosis, imitation, convergence, adaptation, avoidance, subordination and destruction. This course explores normative systems that most law-school courses ignore. Course Grades & Requirements: Your final grade will be based upon the following:

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Midterm exam (20%): in-class exam on Th, March 14, 2013

Short paper (20%): you will analyze one particular Legal Pluralism case

study in this short research essay (6-8 pages). You will write about a normative system (ideally non-state), assessing both its rules and its adjudication mechanism. Please identify your topic via the sign-up screen on our Moodle course page (max. one student per topic). I will provide a list of potential topics on the website, but you may also choose a topic that is not on the list if you obtain my prior approval.

You may sign up via our Moodle course page any time during the one week after the opening of the list at 7pm on Th, Jan.31, 2013. You must declare your topic via our Moodle course page by midnight on Th, Feb.7, 2013. You must submit your paper via our Moodle course page by midnight on Sunday, April 7, 2013.

Final exam (40%): we will have a closed-book final exam on

Saturday, May 18, 2013 at 7.45am-9.45am (location TBA).

Class participation (including attendance) (20%): you are expected to attend all classes and to contribute regularly to class discussions. I will take attendance at the beginning of each day’s session.

Written Work:

Format: Your short paper must be typed in 12-point font with 1-inch margins. It must be double-spaced and submitted electronically via our Moodle course page.

Late policy: Up until 48 hours after the deadline, I will deduct one point (out of 20) for every 12 hours that a short paper is late. Late papers will not be accepted more than 48 hours after the deadline.

Course Materials: All readings for the course are available electronically through our Moodle course website. It is therefore imperative that you secure access to our website. Please contact me if you have any difficulty logging on.

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Technology:

Laptop ban: For pedagogical reasons, the use of laptops or other electronic devices (like iPads and smartphones) is not permitted in class. In order to ensure a full and engaged learning experience, the use of any type of electronic device in class is prohibited unless required for properly documented medical reasons and/or arranged through the McBurney Center. Any recordings made of our class (using the medical/McBurney exception) shall be for students’ own study purposes. Such recordings shall only be made with prior permission from me and are not to be made available to anyone outside of our class.

Academic Misconduct:

The stakes: You have a lot to lose if found to have committed academic misconduct. Misconduct during your undergraduate years may be recorded and submitted to future potential employers and institutions for post-graduate study. If you plan to apply to law school or grad school, you should realize that your academic misconduct could prevent you from being accepted, or from pursuing your desired profession later (e.g. practicing law). It is therefore critical that you familiarize yourself with UW’s policies and procedures governing academic misconduct: http://students.wisc.edu/saja/misconduct/UWS14.html

Plagiarism: Any intentional attempt to claim the work or efforts of another person without authorization or citation constitutes academic misconduct. This includes cutting and pasting text from the web without quotation marks or proper citation, or paraphrasing from the web (or any other source) without referring to the original. I take such actions seriously. If I suspect that you have plagiarized, I may penalize you in grading your assignment. Alternatively or in addition, I may pursue disciplinary measures.

Other forms of misconduct: Because I grade on a curve, any cheating by

classmates will affect your grade directly. If you believe that a classmate is cheating or committing any other kind of academic misconduct, report it to me.

Course Reading Schedule: LEGAL PLURALISM: THE BIG PICTURE

T, Jan. 22, Class 1: Introduction Film: “Courts and Councils: Dispute Settlement in India”

(documentary made by the UW Center for South Asia, 1981) [(optional) see online guide at http://www.southasia.wisc.edu/sales.html]

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Th, Jan. 24, Class 2: Big Ideas in Legal Pluralism

o Sally Engle Merry, “Legal Pluralism,” Law and Society Review 22 (1988) 869-96

Reading & Discussion Questions: How have scholars of legal pluralism shifted their focus and approach over time? Identify the two key periods or flavors of Legal Pluralism scholarship described by Merry.

T, Jan.29, Class 3: Legal Pluralism’s Diversity— from micro to macro

o W. Michael Reisman, Law in Brief Encounters (New Haven: Yale University Press, 1999), 51-5, 67-96 with notes (“Ch.2: Standing in Line and Cutting in”)

Qs: (1) On Reisman: What is microlaw, according to Reisman, and why do social conventions surrounding the practice of standing in line count? Identify the basic principle and exceptions that form a part of this practice. How are these social norms enforced? (2) What informal rules of etiquette have you observed in your own social interactions? Do you find some of these norms unreasonable? If so, why? Have you seen social rules change over the course of your own life, or differ in another society? What happens when there are disputes over etiquette? (3) What kinds of informal rules and dispute resolution systems exist in online communities?

Th, Jan. 31, Class 4: Legal Pluralism & Legal Sources

o K. N. Llewellyn and E. Adamson Hoebel, The Cheyenne Way: Conflict and Case Law in Primitive Jurisprudence (Norman: University of Oklahoma Press, 1941), 3-19

o Maung Htin Aung, Burmese Law Tales: The Legal Element in Burmese Folklore (London: Oxford University Press, 1962), tales no.8, 30, 54, 56, 60, 62

o Levin v Halston (1977) 91 Misc. 2d 601-2 Qs: Consider the format of the legal norms being conveyed in today’s readings. Can you characterize these case studies as either legal stories or legal rules? Does it matter whether they were produced by oral societies, or by societies that liked to write things down?

Th, Jan.31 from 7pm+: *Sign-up for short paper topics begins on our Moodle course page. You have one week to declare your topic.

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T, Feb.5, Class 5: Legal Pluralism & the Aims of Dispute Resolution o Gray Cavender, “A Note on Voudou as an Alternative Mechanism

for Addressing Legal Problems,” Journal of Legal Pluralism and Unofficial Law 27 (1988) 1-18

o Inge Kleivan, “Song Duels in West Greenland—Joking Relationship and Avoidance,” Folk 13 (1971) 9-25

o “Inuit Song Duels from the Canadian Arctic” from Norbert Rouland, “Les modes juridiques de solutions des conflits chez les Inuit,” Etudes Inuit Studies (1979) vol.3 supp. issue (trans. by M. Sharafi), 1-2

Qs: The readings suggest that the line dividing the following may not always be distinct: (a) dispute settlement and therapy;(b) dispute settlement and performance arts. Are you convinced? Should state law embrace or discourage this blurring of domains?

COMPETING LEGAL SYSTEMS IN THE ANGLOSPHERE

Th, Feb. 7, Class 6: Legal Pluralism and Local Law Ways o David Hackett Fischer, Albion’s Seed: Four British Folkways in

America (New York: Oxford University Press,1989), “Introduction,” 3-11; “East Anglia to Massachusetts,” 13-17, 189-96; “Borderlands to the Backcountry,” 605-12, 759-71

Qs: Fischer argues that customary norms from particular regions in the British Isles were transported to the New World, relatively intact. What particular regional connections does he identify? Are there complicating factors he may understate or overlook?

Th, Feb.7: *Short Paper topic must be declared by midnight tonight

(i.e. at the end of today) via our Moodle course page

T, Feb.12, Class 7: Juggling Jurisdictions in the US o Lawrence M. Friedman, “A Dead Language: Divorce Law and

Practice before No-Fault,” Virginia Law Review 86 (2000), 1497-1536

Qs: According to Lawrence Friedman's history of American divorce law, where would you want to go to get an easy divorce? What types of arguments would you have to make to succeed in those jurisdictions? How did other states' courts react?

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Th, Feb. 14, Class 8: Juggling Jurisdictions in colonial India o Mitra Sharafi, “The Marital Patchwork of Colonial South Asia:

Forum Shopping from Britain to Baroda,” Law and History Review 28: 4 (2010), 979-1009

o Map of British India and Indian Ocean region (circa early 20th c.)

Qs: (1) How did the behavior of strategic litigants in colonial India look similar to that of strategic American litigants in the same period (late 19th-early 20th c.)? How did it differ? (2) Describe the personal law system. How did forum shopping within this system differ from forum shopping between territorial jurisdictions?

COMMERCIAL & ATHLETIC COMMUNITIES

T, Feb. 19, Class 9: Merchants

o Eric A. Feldman, “The Tuna Court: Law and Norms in the World’s Premier Fish Market,” California Law Review 4 (March 2006), 313-69

Qs: The Tsukiji tuna court in Tokyo, Japan is famous among merchants' courts. In what ways does it operate differently from most state courts? In what ways does it meet the particular needs of traders who buy and sell fish?

Th, Feb.21, Class 10: Minority Trading Communities

o Barak D. Richman, “How Community Institutions Create Economic Advantage: Jewish Diamond Merchants in New York,” Law and Social Inquiry 31 (2006), 383-418

Qs: How do orthodox Jewish diamond traders function so efficiently and effectively in their trade? Consider the risks specific to the diamond trade, the role of trust between traders, and the role of ethno-religious community membership

T, Feb. 26, Class 11: Sports

o David Fagundes, “Talk Derby to Me: Intellectual Property Norms governing Roller Derby Pseudonyms,” Texas Law Review 90 (2012), 1093-1131

Qs: (1) Why don’t derby girls use the formal legal system to enforce their rights over their names? Why is this informal mechanism of regulation so effective? (2) From playing or watching sports yourself: what are some of the informal rules, exceptions and dispute resolution systems that you have observed?

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GUEST SPEAKER Th, Feb.28, Class 12: Canon lawyer Patrick J. Wall on Canon Law and

priestly sex abuse cases o Code of Canon Law, CIC 1983, Canons 1-28

(http://www.vatican.va/archive/ENG1104/__P2.HTM)

o National Public Radio’s “This American Life” episode transcript: “Enemy Camp 2010” (Patrick Wall segment), originally aired 4 Feb. 2010 (http://www.thisamericanlife.org/radio-archives/episode/404/transcript); or listen to this segment of the show online (Act 1, approx. 24 min.): http://www.thisamericanlife.org/radio-archives/episode/404/enemy-camp-2010?act=1#play

Qs: How has the Catholic Church’s system of canon law come into conflict with state law in cases in which priests are accused of sexual abuse? What caused our guest speaker Patrick Wall to cease being a Benedictine monk and Catholic priest? How has he employed his knowledge of canon law since?

VIOLENT COMMUNITIES

T, March 5, Class 13: The Feud o William Ian Miller, Bloodtaking and Peacemaking: Feud, Law and

Society in Saga Iceland (Chicago: University of Chicago Press, 1990), “Ch.6: Feud, Vengeance, and the Disputing Process,” 179-220

Qs: Although the blood feud may look like pure, unstructured violence, scholars have argued that in many times and places, the feud has been governed by rules. What were the basic rules of the medieval Icelandic feud? How and where does the feud or vendetta continue to exist today?

Th, March 7, Class 14: The Duel

o David S. Parker, “Law, Honor and Impunity in Spanish America: The Debate over Dueling, 1870-1920,” Law and History Review 19:2 (2001), 311-41

Qs: What social functions did dueling play in Spanish American societies during the late 19th-early 20th century? What were the informal rules? In what ways did opponents of dueling propose using state law to stop the practice?

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T, March 12, Class 15: Lynch Law o Andrea McDowell, “Criminal Law beyond the State: Popular Trials

on the Frontier,” Brigham Young University Law Review (2007), 327-77

Qs: Historians and anthropologists of law have tried to rehabilitate formerly discredited and even villainized forums of dispute resolution. Are you convinced by McDowell’s attempt to rehabilitate “lynch law”? Why or why not?

Th, March 14, Class 16: *In-class Midterm Exam (20%)

T, March 19, Class 17: Mafia Law

Film Clips: “The Godfather” (1972) o Peter Reuter, “Social Control in Illegal Markets” in Donald Black,

ed., Toward a General Theory of Social Control, vol.2 (Orlando: Academic Press, 1984), 29-58

o “Mafia’s ‘Ten Commandments’ Found,” BBC News (UK) (9 Nov 2007), 1-2 (online edition)

Qs: Under what circumstances has the mafia historically provided dispute resolution services? Has it been efficient and effective? If so, why and how?

RELIGIOUS COMMUNITIES

Th, March 21, Class 18: Jewish Law

o Michael Ausubel and Michael J. Broyde, “Legal Institutions” in Gershon David Hundert, YIVO Institute for Jewish Research, eds., The YIVO Encyclopedia of Jews in Eastern Europe (New Haven: Yale University Press, 2008), 1-8

o Mary Douglas, Purity and Danger: An Analysis of Concepts of Pollution and Taboo (London: Routledge, 2002), 51-72 (“Ch.3: The Abominations of Leviticus”)

o Nancy Davidson, “Born-Again Kosher,” Gastronomica: The Journal of Food and Culture 4:3 (204), 73-4

Qs: (1) On religious law generally: How is religious law different from bodies of law that do not derive their authority or legitimacy from religious sources? What benefits and disadvantages are conferred upon legal systems that claim to be of divine origin? (2) On Jewish law specifically: what special institutions have administered Jewish law throughout its history? What made them different from the state courts of the host societies in which Jews lived? Identify some key rules applying to the consumption of food in Jewish law. What are some ways

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these rules have been explained or justified? Which type of explanation do you find most convincing?

Sat., March 23 - Sunday, March 31, 2013: Spring Break

T, April 2, Class 19: Introduction to Islamic Law

o Bernard Weiss, The Spirit of Islamic Law (Athens, GA: University of Georgia Press, 1998), 1-23 (“Ch.1: The Formation of Islamic Law”)

o Sheikh Yusuf al-Qaradawi and others, “Fatwa on American Muslims in the US Military” (27 Sept. 2001), 1-3

Qs: (1) On Weiss: (a) in the Islamic legal tradition, what is the status of legal scholars or jurists, as compared to judges or qadis? How would you describe their relationship with state or political authorities generally? (b) Why does Weiss argue that "sharia" means more than just law? What else does it include, by his account? (2) On Fatwa of 27 Sept.2001: Are Muslim members of the US armed forces permitted to fight against other Muslims in Afghanistan or elsewhere, according to the fatwa's interpretation of Islamic law? Why or why not?

GUEST CLASS

Th, April 4, Class 20: Prof. Prakash Shah (Queen Mary, University of London) on Muslim Legal Pluralism in England

o Werner Menski, “Muslim Law in Britain,” Journal of Asian and African Studies 62 (2001), 127-63

o (optional) video of lecture by John Bowen,“What is True and False about UK Shariah Councils” (Queen Mary, University of London on 4 Sept. 2012, 63 min.): http://ess.q-review.qmul.ac.uk:8080/ess/echo/presentation/a82d4d7f-200d-4e93-

88fc-e9c5c24bc26e Qs: (1) What are the possibilities for the legal recognition of Muslims in

English law? (2) Can Islamic law as such be recognized by English law?

(3) What does your answer to either question tell us about the the nature

of British multiculturalism?

Sunday, April 7: *Short Paper (20%) due by midnight tonight (i.e. at the end of today) via our Moodle course page

RELIGIOUS COMMUNITIES (continued)

T, April 9, Class 21: Christian Communities and Law in the US o Carol Weisbrod, “Utopia and the Legal System,” Society (January-

February 1988), 62-5

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o Sarah Barringer Gordon, The Mormon Question: Polygamy and Constitutional Conflict in Nineteenth-century America (Chapel Hill: University of North Carolina Press, 2002), “The Laws of God and the Laws of Man,” 1-15; and “The Logic of Resistance,” 97-107 with notes

o Shawn F. Peters, “Don’t protect reckless behavior,” Milwaukee Journal Sentinel (28 Nov.2009) , 1-3

Qs: (1) On Weisbrod: how did religious Utopian communities in the 19th-century US interact with contract law in state courts? What types of parties usually won contractual disputes? (2) On Gordon: What arguments were made for and against Mormon polygamy in the 19th-c. US? What conceptual points of intersection existed between debates over polygamy and slavery? (3) On Peters: How does Wisconsin law treat the medically preventable death of a child who died because his or her parents used faith healing instead of seeking medical help? How would Peters like the law to be changed? Do you agree?

IN-CLASS EXERCISE

Th, April 11, Class 22: Desert Island Legal Pluralism o Read the problem (to be distributed in class in advance and posted

on our Moodle course page) and prepare answers for class discussion according to your assigned group

CUSTOMARY LAW OF INDIGENOUS, NOMADIC & OTHER PEOPLES

T, April 16, Class 23: Indigenous Customary Law in Australia & North

America o Ronald M. and Catherine B. Berndt, The World of the First

Australians: Aboriginal Traditional Life Past and Present (Canberra: Aboriginal Studies Press, 1996), 334-62

o Rob Riley, “Aboriginal law and its importance for Aboriginal people: observations on the task of the Australian Law Reform Commission” in Bradford W. Morse and Gordon R. Woodman, eds., Indigenous Law and the State (Dordrecht: Foris, 1987), 65-70

Qs: Some readers find the Berndts’ account of Aboriginal culture to be condescending and neo-colonial in tone. Others find Riley’s article to be so angry that it is polemical and impracticable in its recommendations for the future. Do you agree with either characterization? Why or why not? Consider narratives of the colonial encounter and requests for action. How do discussions of indigenous peoples’ rights and history differ or feel similar in Australia and the US?

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Th, April 18, Class 24: South Asian Customary Law Melvyn C. Goldstein, “Brothers share wife to secure family land,”

CNN News “Article 14,” 90-3 [reprinted from Natural History (March 1987)], 39-48

Gerald D. Berreman, “Himalayan Polyandry and the Domestic Cycle,” in Manis Kumar Raha, Polyandry in India (Delhi: Gian, 1987), 179-97

Qs: What are the various explanations proposed by scholars for Himalayan fraternal polyandry? In other words, in what ways may it make sense for one woman to be married to several brothers?

T, April 23, Class 25: Legal Pluralism in Afghanistan

o Thomas Barfield, “Culture and Custom in Nation-Building: Law in Afghanistan,” Maine Law Review 60:2 (2008), 347-73

Qs: (1) Afghanistan is often characterized as lawless. What does Barfield say? Do you agree? (2) Distinguish Islamic law from customary norms in the context of Afghanistan. In what ways do these systems occasionally conflict?

Th, April 25, Class 26: The Customary Law of Nomads o Walter O. Weyrauch and Maureen Anne Bell, “Autonomous

Lawmaking: The Case of the ‘Gypsies’” in Walter O. Weyrauch, ed. Gypsy Law: Romani Law Traditions and Culture (2001), 11-21, 27-48, 85-7

o Gillian Flaccus, “Two Gypsy clans’ feud over fortunetelling offers rare glimpse into insular culture,” Deseret News (7 Dec 2007), 1-3

Qs: Describe the substantive rules of Roma (or “gypsy”) law, including key tenets of purity and pollution laws. How do dispute resolution processes occur among the Roma? What types of sanctions exist? What is the Roma view of the state and its legal system?

IMMIGRANT COMMUNITIES

T, April 30, Class 27: Introduction to Immigrant Communities &

Customs o Joshua Cohen, Matthew Howard, and Martha C. Nussbaum, eds., Is

Multiculturalism Bad for Women? Susan Moller Okin with Respondents (Princeton: Princeton University Press, 1999):

Susan Moller Okin, “Is Multiculturalism Bad for Women?” 9-24

Azizah Y. Al-Hibri, “Is Western Patriarchal Feminism Good for Third World/Minority Women?,” 41-46

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Bhikhu Parekh, “A Varied Moral World,” 69-75 Joseph Raz, “How Perfect Should One Be? And Whose

Culture is?,” 95-9

Qs: Do you consider multiculturalism and women’s rights to be opposing concepts? Do different cultural and religious value systems lead to different views of what it means to protect human dignity? Try to create a spectrum of the views expressed by the authors. Who favors multicultural toleration? Who is less open to it?

Th, May 2, Class 28: The Cultural Defense

o Alison Dundes Renteln, “The Use and Abuse of the Cultural Defense,” Canadian Journal of Law and Society 20: 1 (2005), 47-67

Qs: What are the arguments in favor of reducing a criminal sentence (not acquitting the accused) on the grounds that the accused was responding to some culturally provocative act? What are the arguments against the cultural defense? Which side do you find more convincing? Why?

T, May 7, Class 29: The Sikh Debates

o G. S. Basran and B. Singh Bolaria, The Sikhs in Canada: Migration,

Race, Class and Gender (Oxford: Oxford University Press, 2003), 14-29

o “Operational Circular: Head Protection for Sikhs Wearing Turbans” (UK), 18 November 2004, 1-3

o Audrey Gillan, “ ‘Proud to be Welsh and a Sikh’: Schoolgirl wins court battle to wear religious bangle,” The Guardian (UK), 30 July 2008, 1-3

o Don Macpherson, “Student’s kirpan survives latest court challenge,” The Gazette (Montreal), 18 April 2009,1-2

o Kavita Chhibber, “The Sikhs: In the Shadows of 9/11,” Little India (USA), 5 April 2005, 1-10

Qs: How should state law accommodate minority religious practices (or not) in controversies over the Sikh turban and kirpan? Are there important differences between these two types of conflicts (i.e. turban vs kirpan), or do you see them as turning upon the same fundamental questions? Are there important conceptual similarities or differences between the Sikh turban debates and controversies over Islamic dress for women?

Th, May 9, Class 30: Final Review—Legal Pluralism in Current Events

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o readings TBA; to be posted on our Moodle course page

Qs: What Legal Pluralism course themes can you trace in the readings for Class 30? Do any of the readings question or complicate conclusions you think we came to in our course? Do they suggest practical solutions to any of the challenges identified in class? Do you see trends developing in current events that either embrace or resist the idea that law exists beyond the state?

Sat., May 18, 2013 at 7.45am-9.45am: Closed-book Final Exam (40%), location TBA